A SIGN PROTESTING GOVERNMENT TAKING OF PRIVATE PROPERTY? HORRORS!

A recent situation in St. Louis brings together two topics that I have covered in this space before: sign regulations and government takings of private property. A property owner decided to protest the taking of his property by painting, on the side of a building on another property he owns, a red circle with a slash through the words “END EMINENT DOMAIN ABUSE.” The building just happened to be visible from the intersection of two freeways.

The City of St. Louis said that that what the property owner painted on his building was a sign and that the property owner was required to obtain a sign permit. The city then denied the property owner’s application for a sign permit. The property owner sued the city for denying him the permit.

The city admitted that under its sign code, the content of this “sign” was what made it subject to the city’s rules. A federal appeals court ruled that since the regulation of the “sign” depended on what it said, the regulation was an impermissible restriction on the property owner’s right of free expression. You know, the First Amendment.

The attitude displayed by the city in defending its regulation was interesting, to say the least. Here is what a city alderman had to say, as reported in the Washington Post: “If this sign is allowed to remain, then anyone with property along any thoroughfare can paint signs indicating the opinion or current matter relevant to the owner to influence passersby with no control by any city agency. The precedent should not be allowed.”

Got that? “Anyone with property… can paint signs indicating [an] opinion… with no control by any city agency.” Well,we can’t allow citizens to express their opinions without government control, can we?

But isn’t that really what any sign regulation is, regulating expression? I know, there’s a difference between expressing an opinion on a political topic (“political speech” in Supreme Court lingo) and advertising (what the Supreme Court calls “commercial speech”), and the former is given greater protection than the latter. But as long as it’s not four-letter words, why shouldn’t I be able to say whatever I want on a sign?

St. Louis officials apparently claimed that traffic safety concerns are one rationale for their sign regulations, but the court said there really wasn’t any evidence to support that claim. The city also said that its regulations were to promote aesthetics, but apparently couldn’t convince the court that there was any meaningful difference between the appearance of this sign and other signs that would have been granted a permit.

Sign regulations are really all about aesthetic concerns, not safety concerns. We know that cities have very extensive rules on every aspect of how a sign looks: size, design, placement, colors, even the appearance of the lettering. Short of flashing lights that might blind, or moving features that might startle, passing motorists, there aren’t any significant safety concerns, so the sign regulations are really only about how signs look. How is allowing the city to make rules about signs any different from allowing the city to regulate what colors I can or can’t use to paint my house?

As for the eminent domain action (government taking of property) that was being protested by this property owner, he is in the business (as a non-profit) of operating low-income housing. Apparently he was protesting because a number of his properties had been taken after the areas in which they were located were designated by the government as blighted, meaning the government bought the houses so that they could be torn down and replaced with something else. As I have discussed before, this practice is a legal, but controversial, exercise of the government’s right to take private property for public use. Is that really what the Constitution means when it says that private property cannot be taken for public use without just compensation?

AS IF WE NEEDED MORE EVIDENCE OF WHY

TAX SIMPLIFICATION IS NECESSARY…

Here is an excerpt from a recent release by the Treasury Inspector General for Tax Administration, titled Processes Were Not Established to Verify Eligibility for Residential Energy Credits:

More than 6.8 million individuals claimed more than $5.8 billion in Residential Energy Credits on Tax Year 2009 tax returns processed through December 31, 2010. … The IRS cannot verify whether individuals claiming Residential Energy Credits are entitled to them at the time their tax returns are processed. The IRS does not require individuals to provide any third-party documentation supporting the purchase of qualifying home improvement products and/or costs associated with making energy efficiency improvements and whether these qualified purchases and/or improvements were made to their principal residence.

Based on a review of a statistically valid sample of 150 tax returns, TIGTA was unable to confirm homeownership for 45 (30%) of the taxpayers. … In addition, TIGTA identified 362 ineligible individuals who were allowed to erroneously claim $404,578 in Residential Energy Credits on their tax returns. These individuals, including 262 prisoners and 100 individuals under the age of 18, were allowed to erroneously claim these credits because the IRS did not develop a process to identify prisoners or individuals who are too young to buy a home.

Is it time to simplify the tax code when the IRS can’t do any better job of implementing it than this ?

The information contained in the Law Office of DeConcini McDonald Yetwin & Lacy P.C. web site is provided for informational purposes only, and should not be construed as tax or legal advice on any subject matter. The Firm provides legal advice and other services only to persons or entities with which it has established a formal attorney-client relationship.